Another stab in the back

In February President Biden promulgated National Security Memorandum 20. NSM-20 directs the State Department to “obtain certain credible and reliable written assurances from foreign governments receiving [U.S.] defense articles and, as appropriate, defense services” that they will abide by U.S. and international law. NSM-20 also requires the Departments of State and Defense to report to Congress within 90 days on the extent to which these governments and services are abiding by their assurances.

NSM-20 purports to impose a generally applicable requirement. However, it is obviously aimed, Biden style, at Israel’s heart — as Senator James Risch accurately pointed out in a brief statement posted yesterday.

Yesterday the State Department issued the mandated report. It covers seven countries. For some reason or other, the related news stories limit their coverage to Israel. Perhaps that is because Israel is the world’s only Jewish state and now engaged in a fight for its life.

The stories — such as this one by the New York Times’s Michael Crowley — also quote but do not link to the report itself. The only copy I have been able to find online is the unclassified version posted here in PDF form and here on Scribd by Just Security.

The report is 46 pages long. It arrives at Israel on page 18. It departs at page 32. There is something for everyone in it. As Crowley puts it: “The Biden administration believes that Israel has most likely violated international standards in failing to protect civilians in Gaza but has not found specific instances that would justify the withholding of military aid, the State Department told Congress on Friday.” Crowley also observes that the report adds that “the results on the ground, including high levels of civilian casualties, raise substantial questions” as to whether the Israel Defense Forces are making sufficient use of those tools. Crowley then writes:

Even so, the report — which seemed at odds with itself in places — said the United States had no hard proof of Israeli violations. It noted the difficulty of collecting reliable information from Gaza, Hamas’s tactic of operating in civilian areas and the fact that “Israel has not shared complete information to verify” whether U.S. weapons have been used in specific incidents alleged to have involved human rights law violations.

The report addresses Israel’s compliance with international law at pages 21-25. Here is a key paragraph at pages 21-22:

Given the nature of the conflict in Gaza, with Hamas seeking to hide behind civilian populations and infrastructure and expose them to Israeli military action, as well as the lack of USG personnel on the ground in Gaza, it is difficult to assess or reach conclusive findings on individual incidents. Nevertheless, given Israel’s significant reliance on U.S.-made defense articles, it is reasonable to assess that defense articles covered under NSM-20 have been used by Israeli security forces since October 7 in instances inconsistent with its IHL obligations or with established best practices for mitigating civilian harm. Israel’s own concern about such incidents is reflected in the fact it has a number of internal investigations underway. At the same time, it is also important to emphasize that a country’s overall commitment to IHL is not necessarily disproven by individual IHL violations, so long as that country is taking appropriate steps to investigate and where appropriate determine accountability for IHL violations. As this report notes, Israel does have a number of ongoing, active criminal investigations pending and there are hundreds of cases under administrative review.

The report addresses the IDF’s responsibility for civilian harm at pages 25-28. As I read it, Israel has undertaken heroic efforts to mitigate harm to civilians at great risk to its own soldiers, but that’s not quite what it says.

The report, for example, refers to incidents “reportedly” giving rise to civilian harms at the UN’s Gaza facilities destroyed in the war. The report does not cite sources to substantiate key propositions. However, it acknowledges that “reported death tolls in Gaza generally do not differentiate between Hamas and civilian deaths, further complicating efforts to precisely assess the civilian impact.” Gee, why would that be?

How accurate are Hamas’s accounts of “reported deaths”? Perhaps it would make sense to resort to serious statistical analysis, such as that conducted by Abraham Wyner in his Tablet column “How the Gaza Ministry of Health Fakes Casualty Numbers.” The report offers no such analysis or even any standard of comparison by which to assess “proportionality.”

The report conveys the invaluable contribution of the intelligence community: “The IC assesses that Israel could do more to avoid civilian harm[.]” I assess that the same might be said of the IC itself.

The report occasionally offers “reports” of highly questionable data generated by Hamas and its allies as tools of war to scrutinize the conduct of the IDF. The report raises no question about the alliance of the UNRWA with Hamas in Gaza. Here, for example, is one relevant paragraph:

The IDF coordinated with foreign governments and NGOs to create no-strike lists of facilities operated by foreign governments, NGOs, and international organizations. However, since the beginning of the conflict in Gaza, the UN has reported 169 of its facilities in Gaza have been destroyed or damaged. These make up just a fraction of the sites characterized by the USG as Category I protected sites that are given heightened protection under targeting procedures, including diplomatic, medical, education, religious/cultural, and other facilities. Numerous incidents have been reported in which civilians have been hit at these sites. Many of these incidents reportedly have been the result of Hamas launching attacks on Israeli troops from these protected facilities or safe zones, or firing rockets into Israel from them, followed by the IDF returning fire to eliminate the threat. IDF leadership has also cited other occasions where they chose not to engage given the presence of civilians. During this period, 85 alleged incidents of civilian harm involving Israeli military operations in Gaza have been submitted to the CHIRG [i.e., State Department Civilian Harm Incident Response Guidance] for evaluation, and approximately 40 percent of those cases have been closed.

Speaking of assessments, I assess that the report constitutes another friendly Biden stab in Israel’s back by the Biden administration. I would juxtapose the report with the judgment of John Spencer, the West Point modern urban warfare expert:

In their criticism, Israel’s opponents are erasing a remarkable, historic new standard Israel has set. In my long career studying and advising on urban warfare for the U.S. military, I’ve never known an army to take such measures [as the IDF has] to attend to the enemy’s civilian population, especially while simultaneously combating the enemy in the very same buildings. In fact, by my analysis, Israel has implemented more precautions to prevent civilian harm than any military in history—above and beyond what international law requires and more than the U.S. did in its wars in Iraq and Afghanistan.

The international community, and increasingly the United States, barely acknowledges these measures while repeatedly excoriating the IDF for not doing enough to protect civilians—even as it confronts a ruthless terror organization holding its citizens hostage. Instead, the U.S. and its allies should be studying how they can apply the IDF’s tactics for protecting civilians, despite the fact that these militaries would almost certainly be extremely reluctant to employ these techniques because of how it would disadvantage them in any fight with an urban terrorist army like Hamas.

Spencer is the voice of sanity. Interested readers can hear him at length in Sam Harris’s May 7 podcast with him.

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